Q:  If there is a book or books where the author/s are no longer alive or exists and the publisher no longer holds a copyright/patent and/or is defunct — what are my legal or ethical obligations regarding any living relatives (if any) to the original author/s…?

A: It’s important to distinguish between the question of whether the publisher or rights holder still exists, and whether the protection of copyright law is still in force.   We can’t conclude that the copyright no longer persists merely because the publisher is defunct.  Often, when companies go out of business, they sell or transfer their assets, so it’s important to investigate carefully.

If the copyright in the work has indeed expired, or if the author has expressly dedicated it to the public, it is said to be in the public domain, and is therefore free for anyone to use, without obligation to the original author or his/her estate.

An experienced entertainment lawyer can help determine who, if anyone, holds rights that need to be cleared.

This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for readers’ detrimental reliance upon the information appearing in this feature.


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In this video answer, I recommend in favor of getting permission, though in the U.S., the usage might constitute fair use protected under the First Amendment.

In this video, I discuss the nature of a life-rights agreement and I explain that there’s no single “Best” form of contract, that deals need to be custom-tailored to the specifics of a situation.

My Answer:

Paul is planning to use public domain music, reinterpreted for his film score and wants to know what rights and agreements he will need.

QUESTION:

Paul wants to know: Does a film producer need copyright permission for a classical film music score, if the score is being reinterpreted by the producer’s own composers and musicians. He also asks whether copyright law applies to any of this, the original classical piece, the new score, or what.

ANSWER:

Well, let’s take the last part first. Copyright law protects any original work of authorship for a period of time. Nowadays, works are protected for the life of the author plus 70 years. Under older copyright law, the time-frame(s) were much shorter. Right now, most works created prior to 1923 are in the public domain, and can be used without permission.

So, if you’re using a Beethoven piece written in 1820, you don’t need anybody’s permission to use the COMPOSITION. But, if you’re using an existing RECORDING of that piece, you most likely DO need permission from the record label.

If you’re having a new recording made, and you’ve got a composer and musicians doing a new arrangement, or interpretation, or a mashup, then THAT is actually a new work, and you do need permission to use it.

What you really need is a “work made for hire” agreement with those folks… So you will own the copyright in the new work. If you don’t have that in writing, THEY, not you will own it.

If you own the copyright, because you do have such a contract, then you’re free to use it however you want, including making different interpretations. But, if you don’t own it, then the opposite is true, and you’d need a license to do anything at all with the score… even exhibiting the film.

The same rule is true if you’ve got a composer creating an entirely new, original score. you need to have written contracts with the composer who does the score, and with the musicians who perform it.

Its easy, in the excitement of getting a new project off the ground, to leave this kind of thing to good faith… but copyright law can be tricky and this requirement that things be in writing is important… So take the time to get things done right. The good news is that this isn’t a matter of reinventing the wheel, so an experienced entertainment lawyer can get you the contracts you need quickly and cost-effectively.

Guy asks what to do about rights to a book, when you can’t find the heirs of a deceased author, and the publisher is defunct.

From both a legal and an ethical standpoint, you have to get the rights. You wouldn’t go ahead and build a house on land you don’t own, just because you can’t find the owner… the same goes here.

It sometimes is difficult or even impossible to track down the author, or the heirs of the author of a work, but if the work is covered by copyright, it’s still an infringement if you base your work on that material.

This is what’s called the “orphan works” problem, and it’s been a somewhat controversial topic in the legal, regulatory and legislative world for the past few years. Some of the proposals out there would have a sort-of escrow system set up, so if you’ve made a good-faith effort to find the owner, but can’t you put a reasonable license fee in escrow, and if they later surface, they can access that money. The problem is, what if that copyright holder would have refused ANY amount of money, and just doesn’t want a movie made based on his book, poem, or whatever. That’s his right under copyright, and this rule would take away that right.
There are some other proposals out there, and you can read more about the whole situation at a pretty good website called ORPHANWORKS.NET.

Congress hasn’t been able to pass legislation on the issue yet, despite trying several times, so for now, the rule is still that you have to have the permission..

. So, you’ve got to find the copyright holder. That may be the author’s heirs, or it could be the publisher, and if the publisher’s gone out of business, someone or some company probably did acquire the rights to that publisher’s catalog. That someone is called the “successor in interest”. Usually, the government records relating to the closing of the company will give some indication of who took over the assets. This can mean trips to various government archives, courthouses, etc., and it’s fairly detailed legal investigative work…

But, start with a search of the copyright office records. For newer works, (those created since 1978), they’re computerized and searchable online at copyright.gov (assuming the work was registered..). For older works, this is going to mean a trip to the library of congress… you can hire a service to do the search for you… But ultimately, you’ve got to keep trying.

QUESTION

Damian is wondering what the protocol was for using a title for my screenplay that, after checking on IMDB the title, has already been used on a produced motion picture. If  i used the title would I have to pay a fee to the owner’s of the previous production?  In the past I’ve seen movies use an old title but I have no idea if compensation was required to do so.

ANSWER:

Well Damian, this is a little bit tricky.  Generally, the best legal advice is to avoid using an identical or confusingly similar title to a film that’s already been released.

BUT, the law isn’t that cut-and-dried.   Titles aren’t protected by copyright law.  SOME titles are protected by TRADEMARK  and UNFAIR COMPETITION law, but not every title gets that kind of protection…     These laws deal with protecting the public against confusion.    For example, if you title your film “Halloween”, it’s reasonable to expect that the public might consider your film to be another in the series of films that makes up the Halloween franchise.    But, if you chose a title of a very old, obscure, film, that kind of confusion is much less likely.

So, it really depends on the particular title in question, and whether there’s a likelihood that the public will be confused  into believing that one is a remake, sequel, or related project to the other.

But even with that obscure classic film, my advice would be come up with another title… save yourself the hassle.

Q: “When is a work ‘Original’, and when is it an ‘adaptation’?”

This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for readers’ detrimental reliance upon the information appearing in this feature.


Thinking of Producing it yourself? subscribe to my FREE e-course “6 ways to Finance A Feature Film” by visiting http://firemark.com/minicourse

Q: Dave asks how to get an entertainment lawyer to sell a script. I give my answer

This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for readers’ detrimental reliance upon the information appearing in this feature.


Thinking of Producing it yourself? subscribe to my FREE e-course “6 ways to Finance A Feature Film” by visiting http://firemark.com/minicourse

Let me know your thoughts about the video format for these Asked & Answered topics. Do you like the video? Hate it? Use the comments.
This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for readers’ detrimental reliance upon the information appearing in this feature.


Thinking of Producing it yourself? subscribe to my FREE e-course “6 ways to Finance A Feature Film” by visiting http://firemark.com/minicourse